This quote is incorrect: “The judges have a duty to see this and turn a blind eye.” Judges have no duty to see anything other than what is in the court record. They also have no duty to inquire. The fact that they might do so in one case or another does not create a duty. It only means they have broad discretion as long as their inquiry relates to the fundamental allegations being litigated.
We might become understandably angry with judicial results, but that does not mean that there is corruption. It means that the system did not work properly because somebody did not do their job or did it badly. This story has three protagonists – the judge, the prosecuting lawyer, and the defense lawyer. As Gary Dubin has shown repeatedly at the trial level and on appeal, and as I have shown repeatedly at the trial level, these cases can be won if they are litigated properly. All of the protagonists are human beings and, therefore, susceptible to error. But more often than not, the error occurs on the defense side.
You might remember that at the very beginning of all this in 2005, 2006 and 2007, there were hundreds of lawyers across the country who were winning these cases. That’s because there was an attempt to use “servicer” names or MERS as the claimant (plaintiff or Beneficiary in a deed of trust).
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At that time, the industry claimed no trusts were involved and, therefore, no trustees. Most people don’t remember that. And very few lawyers know that.
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The lawyers for the foreclosure mill relied strictly upon the status of a noteholder and leveraged that allegation into a presumption of fact. The fact that was being presumed was that the alleged possessor of the note had received the original and that it had also been granted the right to enforce it.
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Some people might remember Florida Attorney April Charney, who spearheaded a defense that was entitled “show me the note!” The interesting outgrowth of that was the inability of foreclosure mill lawyers to produce the original note. All of this eventually was explained by the head of the bankers Association in Florida, who declared that it was custom and practice in the industry to now destroy the original note and rely strictly on images. The strategy of April Charney frequently resulted in the dismissal without prejudice. The lawyer then refiled with a lost note count in the complaint.
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But the lost note count required the lawyer to produce evidence that the named plaintiff had paid for the underlying obligation and was the legal and equitable owner of the note. Without having the note, the presumptions that now prevail were unavailable. Without those presumptions, there was no case because there were no underlying facts corroborating the argument being made in court.
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Since they could not do that (because it wasn’t true), they then discarded the lost note count by filing a re-created original note in a process involving artificial intelligence and mechanical instruments that produced indistinguishable recreations from the original.
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This is not court corruption. This is corruption within the legal profession and corruption of Wall Street protagonists who are hidden from view. It is a waste of time and effort (and money) to pursue corruption charges against the court.
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Having failed to produce the original note and then finding a way around that, the foreclosure mill lawyers are faced with the even more daunting obstacle of finding a way around their inability to produce an unpaid loan account on the books and records of the company named as claimant, plaintiff or beneficiary.
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But they only need to do that in one instance —- where the homeowner vigorously defends the action.
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Neil F Garfield, MBA, JD, 75, is a Florida licensed trial and appellate attorney since 1977. He has received multiple academic and achievement awards in business, accounting and law. He is a former investment banker, securities broker, securities analyst, and financial analyst.
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FORECLOSURE DEFENSE IS NOT SIMPLE. THERE IS NO GUARANTEE OF A FAVORABLE RESULT. THE COMMENTS ON THIS BLOG AND ELSEWHERE ARE BASED ON THE ABILITY OF A HOMEOWNER TO WIN THE CASE NOT MERELY SETTLE IT. OTHER LAWYERS HAVE STRATEGIES DIRECTED AT SETTLEMENT OR MODIFICATION. THE FORECLOSURE MILLS WILL DO EVERYTHING POSSIBLE TO WEAR YOU DOWN AND UNDERMINE YOUR CONFIDENCE. ALL EVIDENCE SHOWS THAT NO MEANINGFUL SETTLEMENT OCCURS UNTIL THE 11TH HOUR OF LITIGATION.
But challenging the “servicers” and other claimants before they seek enforcement can delay action by them for as much as 14 years or more. In addition, although currently rare, it can also result in your homestead being free and clear of any mortgage lien that you contested. (No Guarantee).
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It is my belief, given the widescale corruption of the banks that operated/operate through non-banks, that homeowner victims should not have to battle this corruption in courts. The government should have, and should, stop the bad practice. Until there is some government intervention, and media publication, the courts will continue to shut down the real victims – anyway they can. The court process is expensive and emotionally draining. This is not to say cannot win, but we need attorneys who are willing to take this on – like they first did at the time of the crisis explosion. Without precedent law, attorneys don’t have a leg to stand on. While Neil and Dubin are willing to take on — they can’t take cases for everyone. We need good attorneys who are not afraid. Then, what happens to the precedent law which is massively inaccurate and flawed?